In a previous editorial, I mentioned my theory on what might be the situation Mueller found himself in with regards to the charge of obstruction on Trump. Since the redacted version of the Mueller Report is due to be released tomorrow, I thought it might be fun to reiterate that point.
AG Barr’s reasoning on the issue of obstruction seems completely illogical on its face to me. Well prior to viewing any of the information in the Mueller Report, and without any specific knowledge of what may have happened, Barr had already concluded in his writings (what many people are now considering the essay part of his Attorney General Application) that it simply wasn’t even possible for Trump to be guilty of obstruction.
His reasoning seems to boil down to two factors:
- Since the President has the unlimited and plenary authority to fire his own appointees at will, then he can do so for any reason without any consequences.
- Since Trump is not being charged with any crime related to the investigation that he is suspected of obstructing, then there could not possibly be any obstruction of justice.
Now, I bet that most of us here can clearly see the problems with these two positions. Frankly, I find this reasoning to be absurd and it scares the hell out of me that someone who espouses this has risen to such a highly important position in our government. But then, a person as unfit as Trump has been elevated to the Presidency, so it’s not very shocking in that sense.
First, the biggest problem with Barr’s memo was that the entire thing was based on absolutely no known facts of the matter. It was pure speculation about what Mueller might have been doing. Marty Lederman, from JustSecurity.com, wrote about this back in December of 2018:
Indeed, the first huge and striking problem with Barr’s memo is that he unjustifiably makes countless assumptions about what Mueller is doing; about Mueller’s purported “theory” of presidential criminal culpability; about Mueller’s “sweeping” and “all-encompassing” “interpretation” of the statute and Constitution; about “Mueller’s core premise[s]” (e.g., Barr assumes Mueller is operating on the premise that a mere “claim” that Trump was impermissibly motivated is enough to trigger a wholesale investigation of the President’s motives, and that Mueller is applying a rebuttable presumption that any decision a President makes regarding himself was improperly motivated—Barr’s right that such assumptions/presumptions would be wrong, but who’s to say Mueller thinks otherwise?); about “unprecedented” steps Mueller is proposing to take; about “Mueller’s proposed regime”; about “Mueller’s immediate target”; about Mueller’s presumed failure to “provide a standard” for what constitutes “corruptly” trying to impede proceedings; about Mueller’s “demands” that the President submit to interrogation; etc.
To read this memo, you’d think Barr were replying to a legal brief that Mueller had submitted in support of a prosecution of the President for obstruction of a federal proceeding. Yet as Barr concedes at the outset, he was “in the dark about many facts.” Indeed, he presumably was “in the dark” about virtually everything he discusses. From all that appears, Barr was simply conjuring from whole cloth a preposterously long set of assumptions about how Special Counsel Mueller was adopting extreme and unprecedented-within-DOJ views about every pertinent question and investigatory decision—and that Deputy Attorney General Rosenstein was allowing him to do so, despite the fact that Mueller is required to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice” and to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.”Just Security
Lederman then goes on to pick apart the absurd memo piece by piece. I will admit that I did not pay much attention to this memo during Barr’s confirmation process. If I had, I would have railed on about it as being something that totally discredits him and should disqualify him completely from being confirmed. The more that I see about Barr, the more I see how bad the situation really is.
One thing that really stands out to me in Barr’s “Look At How I Will Protect You, Mr. President Memo” is this sentence:
“Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction.”Barr Memo
So, this is what leads into the whole point of this editorial. My theory on Mueller’s actions on the obstruction issue.
I believe Mueller has likely laid out a very compelling argument that Trump, indeed, obstructed justice. I think that he chose to not make the final conclusion that Trump should be indicted for that because the investigation was missing the final piece: the direct interrogation of the President. Mueller, being the professional, by the book type of guy he is, would not have wanted to draw the final conclusion on that until and unless he was able to conduct that interrogation. So, did Barr prevent that final piece from happening? Based on his quote in his memo above, it’s a very important question.
As I stated in that previous editorial:
Concerning the obstruction issue…Mueller specifically stated that he did not make a final conclusion on whether the evidence was sufficient to warrant obstruction charges on the President. He specifically stated that his report does not exonerate the President from that possible offense. That means that there is substantial evidence of obstruction.
Let’s consider why Mueller may not have made that final conclusion on obstruction.
It has been reported that Mueller and the AG had discussions about whether to subpoena direct, oral testimony from the President. The nature of that discussion is extremely important.
Was the President’s direct testimony the missing piece as to whether Mueller could make that final conclusion?Is This Justice?
I don’t know what kind of answers we’ll get with tomorrow’s release. My best guess is that we’ll get some more bits of information, but certainly many critically important questions will still be left unanswered. This is all by design. There will be enough of the report provided that the Trump team will be able to say, “See, now the actual Mueller Report has been released and still there is no collusion and no obstruction, and the Democrats are still not happy. They will never be happy.” And that will be the mantra for the weeks that follow while the fight for the full, un-redacted report continues.
The strategy is simple. I think they know that the full report is eventually going to come out, but they want to control it in bits and pieces such that they can dampen the blows and control the narrative. Of course, the only goal is to keep Trump’s base on board. If his base stays on board, then the Republicans in Congress will as well.
Will it work? With what we’ve seen over the past few years, I would not bet against it.